Cord Jefferson

In Florida this month, the state board of education approved one of the most controversial sets of educational achievement goals the country has seen in quite some time. In an effort to close the racial achievement gap that plagues much of America, the board decided to use that gap to set parameters for what it expects children of different races to achieve over the next six years. Breaking from George W. Bush's "No Child Left Behind," which demanded uniform achievement goals for all students in an effort to avoid "soft bigotry," Florida is now going to have racially stratified educational targets in math and reading. In other words, black children performing more poorly than white children won't just be tolerated, it will be the rule.

For something deemed "soft bigotry," this sure seems pretty hard.

The Florida board says it wants 90 percent of Asian students, 88 percent of white students, 81 percent of Latinos, and 74 percent of black students to be reading either at or above their grade level by 2018. For math, the proficiency goals are similar: 92 percent of Asians, 86 percent of whites, 80 percent of Latinos, and 74 percent of blacks (currently, only 38 percent of Florida's black schoolchildren read at or above their grade level, while 40 percent perform at or above their grade in math). Naturally, because this is a discussion about children and race, people are outraged. Juan Lopez, a magnet coordinator at a predominantly black middle school in Riviera Beach, called the board's decision "a little off-base." "Our kids, although they come from different socioeconomic backgrounds, they still have the ability to learn," he told the Palm Beach Post. "To dumb down the expectations for one group, that seems a little unfair."

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Palm Beach County School Board Vice-Chairwoman Debra Robinson, who is black, was less gentle with her criticism. "I'm somewhere between complete and utter disgust," she told the Palm Beach Post, "and anger and disappointment with humanity."

While Florida argues amongst itself about how best to educate children of all races, in Washington, D.C., the Supreme Court is taking on the issue itself with the affirmative action case Fisher v. The University of Texas at Austin.

Back in 1988, Texas state legislators installed a system in which high school graduates in the top 10 percent of their class are guaranteed admission to any state university of their choosing. Those students now make up nearly 80 percent of U.T.-Austin's incoming freshman classes. But because that plan wasn't doing anything for the school's diversity [PDF], U.T. Austin decided to choose the rest of its students through what it calls "holistic review," a process which considers an applicant's race as one factor amongst many.

Abigail Fisher, the young woman at the center of the Supreme Court case, graduated in the top 11 percent of her class in 2008 and was rejected from U.T.. She's now suing the school with the help of the Project on Fair Representation, a right-wing nonprofit legal defense fund that exists to attack racial preference laws. Fisher claims that she was denied entrance into U.T. not because she wasn't talented enough, but because she is white. She also argues that because she was forced to attend Louisiana State University instead of U.T., she wasn't afforded the same career opportunities she'd have had otherwise.

"I probably would have gotten a better job offer had I gone to U.T.," she told the NYT early this month.

U.T. has responded that its holistic review is in full accordance with the law (and they're right, as stipulated by the landmark 1978 Supreme Court case University of California Regents v. Bakke, and again in 2003's Grutter v. Bollinger). In 2003, the Supreme Court's majority ruling, authored by the now retired Justice Sandra Day O'Connor, stated that the U.S. Constitution "does not prohibit [Michigan law school's] narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body." It also looked toward a future in which race-based affirmative action will outlive its usefulness: "The Court expects that 25 years from now, the use of racial preferences will no longer be necessary."

Nine years into that 25-year window, affirmative action is less important than it once was, but it's still extraordinarily relevant. A 2007 New York Times magazine article explained just one of the ways California's barring of affirmative action in 1996 negatively impacted many black students attempting to get into the state's elite colleges:

The law says that universities can't consider race, even though race has an enormous effect on the lives of applicants. California's best high schools offer so many A.P. and honors classes - which confer bonus points on a student's G.P.A. - that the average G.P.A. of white and Asian freshmen at U.C.L.A. is now 4.2. At many of the largely black high schools around Los Angeles, it is sometimes impossible to do much better than a 4.0, because of the relative lack of A.P. classes.

Despite some hiccups along the way, and despite Fisher's personal complaints, affirmative action—where it's still legal—appears to be working. In 2010 enrollment at post-secondary institutions was 14 percent black and 61 percent white. Thirty-five years ago those numbers were 9 percent and 83 percent, respectively.

We've also started to think differently about the perceived goal of affirmative action. Whereas once it was considered necessary to right the historical wrongs of slavery and subsequent oppressive forces like Jim Crow, the Grutter decision made clear that the primary reason for affirmative action should be "obtaining the educational benefits that flow from a diverse student body." In other words, affirmative action has become less about penitence to minority communities—particularly black Americans—and more about the student enrichment and breadth of knowledge that can be gained from putting together a lot of disparate experiences into a sort of learning potpourri. One reason for the shift in justification may be that it's more palatable to people who might otherwise complain that America shouldn't be giving preferential treatment to minorities. "Affirmative action isn't about being good to blacks," we can now say cheerily. "It's about making education better for everyone!"

The juxtaposition of Fisher's U.T. grievances with Florida's declaration that it's going to take a while to dig black children out of the hole they're in makes for an interesting muddle of conflicting ideas. On the one hand, affirmative action in its original iteration straightforwardly acknowledged that historically oppressed blacks deserve some precedent at universities in order to level the playing field. The new affirmative action is more indirect with its critique of history, but it still endorses the idea that most college campuses are too white, and that the learning environment suffers because of it. On the other hand, when Florida says outright that inequities have made it so black students as a whole are hobbled and can't achieve the way their white counterparts can, black leaders instinctually reel at what sounds like the wisdom of The Bell Curve. So where does the goodness of affirmative action end and the ugliness of Florida's new racially divided policy begin? At what point does accepting the realities of what centuries of discrimination has done to the black community turn into new discrimination based on insultingly lowered expectations?

Regardless of what the Supreme Court decides in Abigail Fisher's case, it's unlikely affirmative action is going anywhere anytime soon, even if it's technically outlawed. As Stanford law professor Richard Thompson Ford wrote in Slate last month, "[W]hen an admissions or hiring decision involves multiple subjective factors, its very hard to know whether or not race, per se, was one of them." Essentially, affirmative action will remain, because even if it does exist, it's nearly impossible to prove it's being used. What will also remain, unfortunately, is Fisher and her ilk's belief that if they lose in life it was because a black person somewhere cheated. To them, it's simply not conceivable that a nice white college applicant from Texas was inferior to other black and Latino applicants, and so they decide that someone somewhere needs to get sued in order to stop giving the minorities an unfair advantage.